Summary
In Griffin v. Griffin, 226 Ga. 781 (3) (177 S.E.2d 696) (1970), this court, recognizing that other states are divided on the question, held as a matter of first impression in this state that child-visitation rights should not be made contingent on payment of child support, and, conversely, payment of support should not be made contingent on allowance of visitation privileges.
Summary of this case from Haase v. HaaseOpinion
26069.
ARGUED SEPTEMBER 16, 1970.
DECIDED OCTOBER 8, 1970.
Modification of custody award. Cook Superior Court. Before Judge Lott.
Roy Benton Allen, Jr., for appellant.
W. S. Perry, E. R. Smith, Sr., for appellee.
1. In order to authorize a modification of alimony there must be evidence of a change in the financial status of the former husband since the prior award was made.
2. Where the former wife and not the former husband seeks a modification of an alimony award, attorney's fees are not allowable.
3. Neither visitation privileges nor alimony should be conditioned upon compliance with the other.
4. Under the stipulation in the present case, the modification in the custody decree was authorized.
ARGUED SEPTEMBER 16, 1970 — DECIDED OCTOBER 8, 1970.
In February 1969 Karen Dickerson Griffin obtained a divorce from Charles Edward Griffin. Under the terms of the decree the wife was granted custody of the children from September 1 until May 31 each year while the husband was given custody from June 1 until August 31 with the right of the wife to have custody of the children every other week during the June through August periods.
Thereafter, on June 20, 1970, the husband filed the present petition seeking a change in custody of the couple's two children based upon an alleged change in conditions affecting the children's welfare occurring after the original divorce decree and award of custody.
The trial judge, after hearing evidence, rendered a decree changing custody so as to give the father custody for two three-week periods each summer, and granting the wife additional relief based upon her answer and "counterclaim." The husband appealed from the final judgment and enumerates as error various portions of such judgment.
The final judgment changed the period of custody of each parent, granted the wife the right to claim both children on her State and Federal income tax returns, awarded the wife attorney's fees, and held that the husband's visitation rights were dependent upon his being current with support payments.
1. While there was evidence of the husband's present earnings, there was no evidence of any change in the husband's financial status since the divorce decree which included alimony was rendered. Compare Peace v. Peace, 226 Ga. 571 ( 176 S.E.2d 51). Thus the trial court was without authority to modify the amount of alimony (child support) required to be paid by the husband. The original divorce decree provided that each parent would be entitled to claim one child as a dependent for income tax purposes while the decree appealed from here granted the wife the exemptions for both children. Assuming but not deciding that the superior court has authority to determine which parent is entitled to such tax exemption, since the exemption has a monetary value to the parent entitled thereto, any change of such entitlement is in reality a modification of the child support which was held above to be unauthorized. Accordingly, this part of the decree was not authorized.
2. Under the decision in Gallant v. Gallant, 223 Ga. 397, 400 ( 156 S.E.2d 61), the trial court erred in allowing attorney's fees since the wife and not the husband sought the modification of the alimony award.
3. The original decree as well as the instant decree provided that the father would not be entitled to visitation privileges unless the child support payments were current. This part of the decree is enumerated as error. No decision of this court directly in point has been cited by counsel for either party and none has been found.
In Stewart v. Stewart, 217 Ga. 509 ( 123 S.E.2d 547), in a case wherein the father sought to avoid being held in contempt of court for a refusal to pay child support, Mr. Justice Quillian said for this court that the refusal to pay such child support was not justified because the mother refused to permit him to exercise his visitation rights "where the decree does not make visitation rights of the father a condition precedent to the payment of alimony for the support of the children." Neither this decision nor any case there cited is authority for the validity of a decree making the right of visitation or payment of alimony dependent upon compliance with the other.
Alimony for child support is for the support and benefit of the children, and the mother holds such funds as trustee for the children. See Thomas v. Holt, 209 Ga. 133 (2) ( 70 S.E.2d 595), and citations.
As to visitation between the child and the parent not having permanent custody, it is well stated in Corpus Juris Secundum: "Since minor children, notwithstanding the divorce, are entitled to the love and companionship of both parents, and the well rounded development of a normal child demands an association with both parents, the decree, within the discretion of the court, may and, under normal circumstances, should include a provision permitting the parent deprived of their custody to visit or communicate with the children under such restrictions as the circumstances may warrant. A divorced parent has a natural right of access to his child awarded to the other parent, and only under exceptional circumstances should the right or privilege be denied, but the welfare of the child must receive the paramount consideration in the determination of this matter. This privilege must yield to the good of the child, and may be denied to either, or both, parents, where the best interests of the child will be served thereby. Even the guilty party is usually allowed this privilege unless morally unfit to associate with the child." 27B CJS 478, Divorce, § 312.
While other states are divided upon the question of visitation privileges being dependent upon payment of child support (see cases cited in 27B CJS 481, notes 4.10 and 5), the better rule appears to be that visitation should not be made dependent upon payment of child support. The wilful failure to pay child support is punishable by contempt or by fi. fa. (see Code §§ 30-204, 30-208), and the refusal to comply with an order requiring compliance with visitation privileges in custody decrees is punishable by contempt (see Neese v. Nance, 223 Ga. 315 ( 154 S.E.2d 442)), thus it is unnecessary to include in the decree conditions which make visitation contingent upon payment of support or which make payment of support contingent upon allowance of visitation privileges, and any attempt to do so would have the effect of permitting a parent to bargain with the rights of the child. This part of the decree was error.
4. On the trial of the case it was stipulated: "the defendant's intended move to Florida was a circumstance that arose subsequent to the February 5, 1969, order of the court and that transporting the children of the parties back and forth between Cook County, Georgia and Fort Myers, Florida, in order to comply with terms of the order of February 5, 1969, would adversely affect the welfare and best interest of the said children; and that the order of February 5, 1969, should be modified and changed to prevent this adverse interest from occurring." In view of this stipulation, it cannot be said that the trial court erred in modifying the custody decree so as to prevent the children from being transported weekly between Fort Myers, Florida, and Adel, Georgia, during the summer months. No error is shown by this, the sole remaining enumeration of error.
Judgment affirmed in part; reversed in part. All the Justices concur.